BRIJ LAL
s/o Rajendra Deo
Appellant
AND:
THE STATE
Respondent
Appellant in Person
Ms. L. Laveti for the State
REASONS FOR JUDGMENT
On the 13th of August 1996Labasa, this Court in an ex-tempore judgment reduced the appellant's sentenentence from 18 months to 9 months imprisonment and set aside an order forfeiting part of a good behaviour bond entered into by the appellant in September 1995 and which was still extant at the time of his conviction for the present offence.
The appellant and a co-accused were ed in Labasa Magistrate Court with an offence of f Shop Breaking Entering and Larceny in which they were alleged to have broken into a shop in Savusavu at night and stolen therein a cash register and $130 cash.
The appellantded 'guilty' to the offence and was convicted and sentenced to 18 months imprisonment. He appealed against the sentence being 'both harsh and excessive' given his relative youth and this being his first time in prison. It was also common ground that his share of the cash ($37) was recovered from him and that he played a 'secondary role' in the commission of the offence.
At the hearing of the appeal the appellant related how he came from a broken home where he ifficulties with his step-mtep-mother and
left home and fell into bad company. This was not disclosed to the trial magistrate but would undoubtedly have been disclosed in
a Social Welfare officer's report had one been sought as it should have been. The trial magistrate had thereby denied himself the valuable assistance that he
could have got in the difficult task of sentencing a young offender.
Be that as it may the appellant is 19 years of age (D.o.b.: 28.11.77) and although a second-time offender, this was his first sentence of imprisonment. This Court has said on
numerous occasions in the past that every effort should be made by the Courts to keep young offenders out of prison if at all possible.
Furthermore it has been said where the offence is such thyoung offender must be sent to prison then the shortest post possible sentence
ought to be imposed as the circumstances would permit. The salutary effect of the 'clanging of prison gates' cannot be under-estimated in the case of young offenders.
In this instance the trial magistrate not only failed to consider the appellant's relative youth and secondary role in the offence
but there is also no mention in the sentence of the appellant's 'guilty' plea which is a mitigating factor.
As for the iture order, in my view it is 'wrong in principle' to order forfeiture of a mf a money bond whilst imposing a sentence of immediate imprisonment, especially in the case of a young
unemployed offender who has no reasonable opportunity or hope of ever paying it.
Needless to say a magistrate dealing with an impecunious offender and minded to order his binding over would do well to require a
surety who could then be looked to for payment in the event of a future forfeiture order. Unfortunately this was not done in this
case.
Furthermore, as with the activation of a suspended sentence, a magistrate minded to order forfeiture of a monetary bond must, as a
matter of natural justice and fairness, give the accused an opportunity to show cause why such an order should not be made. This
was clearly not done in this instance.
